Pretoria - Three days spent in a filthy cell following allegations that a granny damaged her neighbour’s carport by throwing rubbish on its roof will cost the taxpayer R120 000.
The court ordered the police minister pay her this amount in damages.
Avril Diljan initially claimed damages against the police at the Pretoria Magistrate’s Court. But a magistrate found the officers who had arrested and detained her did nothing wrong.
She appealed against this decision before the Gauteng High Court, Pretoria, which also ruled against her.
But it was third time lucky for Diljan, as the Supreme Court of Appeal ruled her arrest and detention indeed unlawful and that she should be paid R120 000 in compensation.
Her arrest and detention in a filthy police cell came after two constables on patrol duty received a telephone call from the Community Service Centre about a complaint lodged by a Ms Goliath in Eldorado Park.
They proceeded to the address, and when they got there, Goliath told them Diljan had damaged her carport by throwing stones and rubbish through her first floor window.
The officers inspected the carport and saw that it was damaged.
They immediately decided that Diljan was guilty of malicious damages to property. She was arrested and detained in the holding cells at the Eldorado police station.
The constables testified they had no power to release her either on warning or on bail. According to them, only members of the detective branch and, in particular, the assigned investigating officer, were vested with such powers.
Diljan testified that the officers asked her to accompany them to the police station under the pretext that they were to discuss the complaint lodged against her by Goliath.
At the police station she was thrown into a cell, without being told what the charge against her was.
She was not allowed any visits from her family or friends during the three days she was kept in the cell.
After her third night in the cell, she was told she could go home, without ever appearing in a court.
Judge Mandela Makaula, who wrote the Supreme Court judgment, found her arrest and detention unlawful, as the officers who had arrested her, in fact did have the discretion to warn her to appear in court, without arresting and detaining her. The fact that they did not know they had this discretion, did not make their actions lawful.
While it is not known how much Diljan initially claimed in damages, Judge Makaula said “a word has to be said about the progressively exorbitant amounts claimed by litigants lately in comparable cases and sometimes awarded lavishly by our courts”.
Legal practitioners should exercise caution not to lend credence to the “incredible practice of claiming unsubstantiated and excessive amounts in the particulars of claim”, he said.
“Amounts in monetary claims in the particulars of claim should not be ‘thumb-sucked’ without due regard to the facts and circumstances,” he said.
The judge further warned that damages claims were not to enrich aggrieved people, but simply to compensate them for the injustice done to them. Institutions such as the police ministry, should not be treated as “cash cows” with infinite resources, he said. “The compensation must be fair to both parties,” the judge said.
In finding that R120 000 was fair in this case, the judge took into account that the condition of the police cell in which she was detained was filthy with no hot water; the blankets were dirty and smelly; the toilet was blocked and she was not given toilet paper. She could also not eat the bread and peanut butter – the only food provided to her.
The humiliation she endured at the time of her arrest, which was exacerbated by the presence of her neighbours and grandchildren, were also taken into account, the judge said.